LJIL Symposium: A Comment on Dr. Janina Dill’s “Should International Law Ensure the Moral Acceptability of War?”

by Christopher L. Kutz

[Christopher L. Kutz is a Professor of Law at University of California, Berkeley, and is the Director of the Kadish Center for Morality, Law and Public Affairs]

Janina Dill has written a smart and provocative paper, providing a powerful argument against what one might call “naive moralism” in the ethics of war. In this, she is responding to a body of recent and influential work, of which American philosopher Jeff McMahan’s writing forms the core, which has offered an individual-centered moral analysis of the rules of war, meant to supplant the state-centered view of classical Just War Theory (JWT). Against some of the natural conclusions one might draw from a moralized theory, Dill argues that the essentially collective nature of the ethics of war should be preserved, on epistemic grounds. In particular, the collective liability of combatants, and immunity of civilians, is best explained by the difficulty of refining a moral analysis in many plausible cases of conflict.

According to classical JWT, the ius ad bellum and the ius in bello are strictly separated, in the sense that the legality or legitimacy of the war as a whole rides independently of the liability of the individual participants in the war. On this view, whether or not a belligerent state (and its leaders) are fighting a legal or illegal war, soldiers of those states are liable to be targeted just in virtue of their membership in the armed forces; by contrast, civilian non-combatants are immune from deliberate targeting whatever political support they have manifested for even an aggressive war. Thus, in World War II, British and Wehrmacht soldiers stood on the same legal footing (attackable, and only liable for individual war crimes), as do pacifist British citizens and Nazi-supporting German civilians (immune from attack). This collective, status-based approach to targetability is notably different from the individualized assessment of liability to attack that characterizes the criminal law, in which individuals are only targetable when they present particular threats to the lives or vital interests of others; and the permission to use lethal force is only granted to those defending vital interests (of themselves or others), and often not when that defense is the result of the defendant’s own wrongdoing (p. 8).

In a number of recent books and papers, Jeff McMahan has argued that there are no plausible direct moral foundations for JWT, because on any compelling moral analysis — that is, any analysis sufficiently compelling to make claims about liability to lethal attack plausible — liability must be determined by individual culpability. And when we take individual culpability into account, it is hard to avoid the conclusion that many individual soldiers — namely those permissibly defending themselves and others — are not so liable, while many non-combatants are. McMahan himself avoids any direct action-guiding conclusion from his analysis, because of the prospect that absent clear rules of collective distinction, too much horror will result from an attempt by combatants to make the relevant distinctions.

Dill accepts the McMahanian moral analysis, but she rejects the revisionary conclusion, that we should seek to tune our doctrines of war to more individualistic determinations. Instead, she looks to alternative moral foundations for the collective character of war. To my mind, the most interesting aspect of a very interesting and perceptive article is her working through these alternatives. She considers first the idea that war might nonetheless be given a consequentialist justification: that the gross principle of distinction, if applied in good faith by just and unjust belligerent nations alike, would be a “lesser evil” resulting in net fewer unjustified deaths. But as she argues, there is no reason to think the material outcomes of current JWT do a better job than any alternative in minimizing unjustified deaths, since military victory is a consequence of material rather than moral factors. More importantly, an individual moral analysis would result in the conclusion that aggressor soldiers should simply “keep still,” and cease presenting any threat to others. Whatever one might say on behalf of JWT, one cannot think it approximates an outcome whose ideal case is the sudden pacifism of all of one side’s combatants, plus all of the others who are no longer at risk.

The conclusion she draws is subtle. Dill treats as central the “epistemically cloaked” nature of the choices presented by war, where the fog of war makes individual liability determinations implausible, and the tendency of even aggressors fighting (wrongly) in good-faith belief of permissibility makes war inevitable. In such cases, when nations turn to war, IHL properly guides actors towards morally superior outcomes, even if it does not make those outcomes defensible in absolute terms. As she says, if something is indefensible, it cannot be made defensible by epistemic considerations. But the benefits of a rule-of-law approach to war, with over- and under-inclusive bright lines, may itself be morally valuable, in serving to constrain the overall enterprise while recognizing its systematic, i.e. Collective, character. This is, essentially, a Razian analysis of the value of using non-moral norms to coordinate a complex multi-personal enterprise, rather than the sort of full-bore collectivist analysis that some of us have gestured at. Regular war is less evil than irregular war, but this is a distinction to tolerate, not to celebrate.

I am in great sympathy with Dill’s discussion and conclusion, but might raise a couple of questions. First, I wonder whether the conflict between IHL and general international law is as stark as she suggests. She notes that IL, in the guise of human rights law, is becoming more individualistic, in protecting individuals against state claims, and thereby respecting individual status. But the great bulk of IL remains obdurately focussed on national interests and privileges, so while there is a tension between IHRL and JWT, it still seems that IHRL is the exception. The consequence of this observation is merely that the state-centered approach of JWT is under less institutional pressure than Dill suggests, while the (mostly potential) role of the ICC is adding a measure of valuable individualization consistent with JWT.

A second question concerns the practical conclusion she draws, that academics should focus on institutional rather than legal reform, since reform in the laws of war is both impractical (given the application of JWT to epistemically forced choice) and essentially pointless, given that it will not render war morally defensible. I am left puzzled by what sorts of institutional reforms she has in mind, as ways to increase the clarity of who counts as an illegitimate aggressor. As Dill herself says, most aggressors fight in good faith over complicated back stories. It is hard to imagine any tribunal and executive judging just cause in real time, adequate to intervene before hostilities state, that would be more effective in averting conflict than the existing ICJ and Security Council — that is to say, effective at all (as compared to the effectiveness of balance of power considerations in keeping peace). While she says that institutional discussion is beyond the scope of her paper, it is a lot to leave hanging, and I am eager to hear her thoughts. Finally, there are some more general questions one might ask about how the moral notions of permissibility and justification map onto the legal categories of permissible and impunible. Dill says that we cannot declare war by unjustified combatants illegal while screening from prosecution only those who commit specific war crimes, because this will cloud the moral waters. But I do not see a sharp problem. Prosecutorial resources are limited for reasons for fairness, efficacy, and international politics. It seems to me an imaginable legal change to insist that the Kellogg-Briand principle of abolishing war applies to individuals as to states — but that the specific institution of punishment is reserved to atrocities in war. Such a legal distinction might have an effect on breaking two thousand years of assumption of a symmetrical right to war, without disturbing the hard-fought institutional arrangements that just possibly have limited its excesses in recent years.

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